Conant v. Collins

• Decision Date: 05 December 1939
• Docket Number: No. 3108.,3108.
• Citation: 10 A.2d 237
• Parties: CONANT v. COLLINS (two cases).
• Court: New Hampshire Supreme Court

10 A.2d 237

CONANT

v. COLLINS (two cases).

No. 3108.

Supreme Court of New Hampshire. Cheshire.

Dec. 5, 1939.

Transferred from Superior Court, Cheshire County; Burque, Judge.

Actions on the case for negligence by William Conant, and by Alice R. Conant, against Thomas Collins, to recover for injuries sustained when an automobile in which the plaintiffs were riding with defendant left the road. Verdicts for the plaintiffs, and the case was transferred on the defendant's exceptions. Judgments for the defendant. Case for Negligence. The plaintiffs were guest-passengers in an automobile owned and operated by the defendant, when the car left the road after it had nearly turned a curve in Gardner, Massachusetts, struck two glancing blows on a roadside wall, and ran into a tree. As a result the plaintiffs suffered injuries for which they seek to recover. Trial by jury, with a view, resulted in verdicts for both plaintiffs.

The defendant seasonably moved for nonsuits, for directed verdicts and to set the verdicts aside. All motions were denied, subject to exceptions. Exceptions were also taken to the admission and exclusion of evidence. The facts appear in the opinion. Transferred by Burque, C. J.

Murchie, Murchie & Blandin, of Concord (Alexander Murchie, of Concord, orally), for plaintiffs.

Faulkner & Bell, of Keene (Ernest L. Bell, Jr., of Keene, orally), for defendant.

PAGE, Justice.

The cases were tried under the law of Massachusetts, and the question is whether the evidence warranted the finding that the defendant's gross negligence was the cause of the accident. Lee v. Chamberlin, 84 N. H. 182, 148 A. 466.

Taken most favorably for the plaintiffs, the evidence was sufficient to establish the facts about to be stated. The defendant was driving towards Gardner and attempted to follow a left-hand curve in the road. This curve, rather short, made a turn of practically ninety degrees. The surface was tarred and was banked slightly, if at all. At the time of the accident it was dry and without holes or other specially uneven spots. The day was bright, there was no traffic to avoid, and there was no conversation or anything else to distract the defendant's attention. The defendant was perfectly familiar with the road and knew the presence and nature of the curve long before he reached it.

The defendant was eighty years of age and slightly lamed in one leg, but neither age nor physical condition affected his driving. If under some circumstances it may be gross negligence for a person to drive an automobile at the defendant's age or with his defect, there is no evidence to warrant the belief that either octogenarianism or lameness caused the car to leave the road.

The maximum speed that could be found was twenty-five to thirty miles an hour. This speed was not slackened, and the brakes were not applied. The width of the traveled part of the highway was twenty feet except at the peak of the curve, where it was about twenty-four.

It was argued to us that the defendant deliberately ran off the road. William Conant expressed an opinion to that effect, but upon cross-examination it appeared that his definition of deliberate was "careless." There was no other foundation for such a claim.

It is unquestioned that the defendant had good eyesight and that he was giving strict attention to his driving. That being so, the only faults that may be argued are that the speed was excessive, or that the defendant turned his wheel less promptly than circumstances demanded. It may be taken as fact that the defendant was negligent in the formation of an erroneous judgment in either or both respects, and that his judgment erred in that degree requisite to cause what ensued. We must reject, as the jury could, the possibility of some patch in the surfacing, or of some gravel washed onto the curve from an entering highway.

The defendant's negligence caused his car to leave the hard surface of the road. The point at which this happened is determined by the agreement of all the evidence. It was near a tree where the curvature of the road was all but complete and the road was straightening. From that tree to the tree that the car struck, the distance was forty-two feet. In that distance, traveling on rough ground, bumping and swaying about, the defendant was permitted only instinctive action. His negligence could relate only to the two factors already mentioned. Since his error in judgment, either as to speed or the moment for turning the steering-wheel, resulted in so late a deviation from the macadam, it must be found that there was no great departure from the ordinary prudence that would have completed the swing. It cannot be doubted that only a little less speed or a slightly earlier turn of the wheel would have kept the car where it belonged. The question is whether the negligence of the defendant could be found to be gross.

There was danger at the curve, with which the defendant was thoroughly familiar. There was no special banking. The wall was only about three feet from the traveled part of the road. The trees were next to the wall and even nearer to the macadam. Under these circumstances, ordinary care was that degree of care sufficient to keep the car on the road. Lack of such care would probably result in a collision with wall or tree, or both. It is not true, as seems to be argued by the defendant, that reckless disregard of consequences must be...